TN: Only MHC can decide on recruitment ban

Published: Sunday, November 23, 2008, 13:03 [IST]

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Chennai, Nov 23: Madras High Court, which is vested with the control of the subordinate judiciary, can alone decide whether there should be a ban on recruitment or more employees needed for proper functioning of subordinate courts.

Setting aside an order of the Principal District Judge (PDJ), Villupuram, cancelling an appointment on compassionate basis on the ground that the government had rejected the high court's proposal for regularising the person's services, a Division Bench comprising Justices S J Mukhopadhaya and V Dhanapalan, said from a constitutional mandate and a Supreme Court decision, it was evident that the high court could only suggest the number of employees required for proper functioning of the subordinate judiciary.

For the court's proper functioning not only judicial officers and court rooms but also appropriate number of employees were required, the judges said.

A Syed Hassan filed a writ petition stating that he was appointed as Junior Assistant by the PDJ in the Principal Sub-Court, Tindivanam, on compassionate grounds. He joined duty in March 2002.

In August this year, the PDJ cancelled his appointment stating that the government had rejected the proposal for regularising his services.

As per a Government Order(GO) of November 2001, there was a ban on appointment on compassionate grounds in all departments, including High Court. Hence, the appointment of the petitioner was irregular.

In his counter, the PDJ said the GO initially did not speak about appointment on compassionate grounds. The letter clarifying that the ban was applicable for appointment on compassionate grounds also was received by him only in April 2002, after the appointment order had been issued.

The government submitted that the ban was based on its policy and any executive order issued by it had statutory force. By a GO of February 2006, the ban order for filling vacant posts was lifted.

Accordingly, the government prayed for the dismissal of the petition with liberty to the petitioner to submit a fresh application for appointment on compassionate grounds.

In its verdict setting aside the PDJ's order and directing the government to reinstate the petitioner in service with all back wages and consequential benefits, the Bench said the principles laid down in various court decisions made it clear that the executive and judiciary were independent of their control and coordination.

They should be independent of their functions. Any amount of deviation in their control would cause certain hardship to each other. This could be avoided while issuing an executive order, unless it was provided in the rules framed under Article 309 of the Constitution.

''There cannot be any executive order and instructions to impose conditions regarding judicial appointments, particularly in the subordinate courts, which were the pillars of the entire judicial system,'' the bench said.